Enforcements

This page is designed to provide an overview of the planning enforcement system to assist those concerned about possible breaches of planning control within Shepway.

Planning Law can be very complicated and therefore this is only a guide to the enforcement procedures and powers of the Council.

What is a Breach of Planning Control?

A breach of planning control occurs when 'development' takes place without the necessary planning permission or formal consent of the District Council. This could include the following:

• Carrying out building works or the change of use of a property; e.g. from a house to a shop, without planning permission or a building not built in accordance with an approved plan or conditions of a planning permission. This is called 'unauthorised development'
• Carrying out works to a listed building without listed building consent
• Displaying certain signs or advertisements without advertisement consent
• Felling or carrying out works to a tree, which is the subject of a Tree Preservation Order or is situated within a Conservation Area i.e. protected trees.

The following are activities, are not breaches of planning control, and therefore no enforcement action can be taken under the planning legislation.

• Parking of commercial vehicles on the highway in residential areas or on grass verges
• Any operations taking place on a public highway
• Operating a business from home where the residential use remains the primary use and there is no adverse impact on residential amenity
• Parking a caravan within the residential boundary of a property provided that it is ancillary to the dwelling i.e. it is stored or used as an extra bedroom
• Clearing land of undergrowth, bushes and trees provided they are not protected trees.

To commence building works or make a change of use without planning permission is not in itself an offence. Local authorities must consider an unauthorised development in exactly the same way as a planning application and can ask for a planning application to be submitted to try and regularise the situation. This is the most common approach if the activity or building is one, which meets local planning policies and does not create significant local problems. Conditions can be imposed on any permission granted in order to control certain aspects of the building work or use, for example, the materials to be used or operating hours.

How quickly are Planning Breaches Investigated?

The Council sees enforcement action as a crucial component of the planning system. All reports of possible breaches of planning control are taken seriously and investigated as quickly as possible in accordance with a priority system. Obviously, more serious breaches must be investigated immediately e.g. felling of protected trees and unauthorised work to listed buildings. All other lower priorities are dealt with within agreed timescales, subject to the availability of officers.

Are Complaints kept Confidential?

If you have reported a breach of planning control details of your complaint will be dealt with in the strictest confidence. Your name and address will not be repeated to the person or organisation involved in the possible breach. In certain serious cases you may be asked to assist the Council by providing evidence at an appeal or in Court. Before this happens the Case Officer will ask for your consent.

Your complaint will be acknowledged and you will be told which officer will be handling the complaint. The case officer will act as your point of contact and will ensure that you are advised of the progress and outcome of the case.

Complaints about possible breaches of planning control should normally be made in writing.

What matters need to be considered before action is taken?

The enforcement officer has to consider a number of questions before being in a position to recommend a particular course of action, including: -

• Does whatever appears to be happening at the property require consent under planning legislation?

Many minor building works, including alterations to a building, small extension to dwellings, erection of fences, outbuildings up to certain limits, some 'changes of use' and many advertisement signs do not require consent from the Council. If this proves to be the case, no action can be taken.

• Has permission already been given?

Most planning permissions can be taken up at any time within 5 years of being granted. Once partially implemented, there is no time limit on its final completion. So if you see works taking place, but cannot recall a recent planning application, the activities are not necessarily unauthorised. On receipt of a complaint the investigation officer will check that the development is being carried out in accordance with the approved plans and conditions.

• Is the matter serious enough to warrant action?

In considering whether enforcement action is appropriate the decisive issue for the Local Planning Authority should be whether the breach of planning control would unacceptably effect public amenity of the existing use of land and buildings meriting the protection in the public interest. Enforcement action will not normally be initiated where a trivial or technical breach of planning control has occurred which causes no harm, or potential harm, to public amenity in the locality of the site, and where it is not in the public interest to do so. The Council will not take action to solelyregularise an acceptable development or obtain a fee.

• Where permission has not been granted, are the activities nevertheless broadly acceptable in planning terms?
• Where the activities or development are undesirable but controllable by the District Council's planning enforcement power, what is the most appropriate action to take?

Local authorities have a wide range of options from which to choose and which one(s) will be used will depend on the nature of the case. The District Council's priorities are to protect amenity, safeguard the built and rural environment and uphold local planning policy in the speediest and most effective way. The government has issued an Enforcement Concordat, which requires all other possible means to remedy a breach of planning control to be pursued before enforcement action is taken. Shepway District Council complies with the requirements of this concordat

How long does enforcement action take?

• Government advice is to use persuasion and negotiation in all but the most extreme cases. Often, this proves to be the quickest and most effective method of resolving the problem.
• For this reason the person(s) responsible for the breach is usually advised of the problem, what needs to be done to make matters acceptable and the powers of the District Council if they fail to do so. In the majority of cases, the contravenor will take the necessary action of their own accord.
• If persuasion and negotiation are not successful, the District Council may then instigate formal action, which may include: serving an enforcement notice or other notices, taking out an injunction or prosecution. Immediate prosecution is only permissible in the case of unauthorised works to a listed building, the unauthorised display of certain advertisements and the wilful destruction of a protected tree.
• There is a right of appeal to the Planning Inspectorate of the Secretary of State for the Department of the Environment, Transport and the Regions against an enforcement notice and the requirements of the notice are suspended until the appeal is heard. Appeals against enforcement notices may take up to a year to be heard.
• If an appeal is allowed the Council can take no further action. If the appeal is dismissed the period for compliance (which may have been varied by the inspector hearing the appeal) begins from the date of the appeal decision.
• If an appeal is dismissed, legal action (prosecution proceedings) can only be taken if an individual fails to comply with the requirements of an Enforcement Notice after the time allowed by the Enforcement Notice.

What can the Public do to help?

The assistance of the public is often crucial to the success of planning enforcement action by the District Council. Due to the amount of activity relating to building going on in the Shepway area, both authorised and unauthorised, it would be impossible for the Council to identify all possible breaches of planning control, without an army of investigation officers and at great expense. During the enforcement process information from residents can often add to that held on official records. When alerting the Council to a possible breach it is useful to have as much information as possibleincluded in the written complaint and, where appropriate, photographs. This should include, where possible, the date the activity started, the exact location of the building or part of the building, the names, addresses and telephone numbers of the owners, occupiers, builders, agents' etc. Details of the effect that the activity is having on amenity e.g. noise, traffic smells, overshadowing etc. should also be included. The more details provided, the quicker the problem will be resolved.

In certain cases the complainant will be asked to complete a record of events to help the Council to decide whether the use is unauthorised. Such information can be invaluable and may help speed up the process of determining whether there is a breach of planning control.

If an appeal is lodged against an enforcement notice, we will notify anyone who informed us of the matter and ask if they wish to submit additional information or appear at an enquiry or hearing, to support the Councils case. The strength of local support can be crucial to the council's success. Once an appeal has been lodged any representations received become public documents which are available for public inspection.

Further Information and Advice

If you require further guidance on any matter relating to the enforcement of planning control in Shepway, please contact:

Planning Investigation Unit,
Shepway District Council
Civic Centre
Castle Hill Avenue
Folkestone, CT20 2QY

01303-853466

 Planning Control Breach Enquiry